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The troubling end to Canada’s first Twitter harassment trial

As the legal system struggles to protect women, social media companies aren’t doing any better.

This past Friday, an Ontario court found Gregory Alan Elliott not guilty of harassing and threatening two women on social media. Described as the first real test of online freedom of expression in Canada, the case also perfectly encapsulates the internet’s political and gender divide. On one side, Elliott and his championshigh-fiving the verdict as a win for free speech. On the other, Stephanie Guthrie (pictured above), Heather Reilly and their supporters frustrated with a ruling that minimizes the hostility that is almost inescapable for women who use social media.

The case began about four years ago, when Guthrie and Reilly, who are feminist activists in Toronto with a large social media presence, had exchanges with Elliott on Twitter. The tone was combative, with Elliott using language that Justice Brent Knazan described as “mean, crass and insulting” and “vulgar and obscene.” Elliott called each of them a “bitch” and made comments about Reilly’s body. The women called Elliott out and eventually blocked him, but they couldn’t avoid him entirely because he used hashtags in his Tweets to grab their attention. On one occasion, Elliott referred to a bar that Reilly frequented, while she was actually there, leading her to feel as though she was being stalked offline. (Disclosure: I once interviewed Guthrie for a story on online feminism.)

In his 80-page ruling, Justice Knazan found that Elliott did knowingly harass Guthrie and Reilly on Twitter. But Elliott’s actions, the judge ruled, did not constitute criminal harassment because it was not reasonable that Elliott’s actions would cause the women to fear for their safety.

It’s useful to look at how Justice Knazan understands social media, as he appears to believe that the trade off for social media engagement is the inability to set any boundaries or rules whatsoever. He wrote in his decision that anyone with a Twitter account waives their right to privacy in their tweets. He also likened Twitter discussions to “inviting strangers into your home or onto your phone line while you talk to your friends.” It’s a poor analogy: Even when you invite strangers into your home, you are still within your rights to ask them to follow house rules and to remove their dirty shoes from the coffee table.

Given this interpretation of Twitter and the lack of precedent regarding the regulation of online interactions, it’s not surprising that Justice Knazan ruled cautiously. In the anarchic, still evolving, mostly unregulated world of online interaction, lawmakers are leery to step into the breech, particularly when it comes to an issue as significant as free speech.

But if the legal system is incapable of, or unwilling to, figure how to balance freedom of speech with protecting individuals from targeted harassment, then social media companies need to take on this work in a more meaningful way. Had Twitter implemented better systems to address harassment in the first place, Reilly and Guthrie might not have decided to pursue criminal charges and take this case to court. It’s not unprecedented for websites and online platform to prohibit offensive material or ban direct threats to individuals: Reddit adopted an anti-harassment policy last year and shut down some of its most hateful forums.

Anyone who uses Twitter on a regular basis knows that it isn’t a home. They also know it isn’t a public commons built on democratic values and managed by its users. Twitter is multi-billion dollar publicly traded company run by its board and shareholders. As such, it’s more accurate to imagine Twitter as a massive, privately owned global nightclub — a crowded, noisy venue where you can express yourself and act a little wild, swap jokes and opinions, and eavesdrop on conversations. But just because you’re in the same club sharing space with a bunch of other people, it doesn’t mean you’re obligated to dance with every guy who asks you, or duty-bound to invite all the other patrons to join you and your friends at your table. And if a fight breaks out, or if someone invades your personal space, you ought to be able to rely on a bouncer to straighten matters out.

By its own admission, Twitter’s bouncers have done a terrible job. According to an internal memo written by the former CEO last year, “We suck at dealing with abuse and trolls on the platform and we’ve sucked at it for years.”

Twitter can be a cruel place for everyone. No one is immune from acting like a jerk online and I’ve seen insults hurled by the left and the right, and slurs lobbed by people of every age, gender, race, class and sexuality. That said, women, particularly young women like Reilly and Guthrie, receive the worst forms of online abuse. According to the Pew Research Center in the US, while men are most at risk to be called names or embarrassed, women aged 18 to 29 are most at risk to be stalked and to receive rape and death threats. Want proof? Last year, Anita Sarkeesian, a prominent feminist in the tech and gaming world posted a typical week’s worth of tweets that were directed at her, and it’s a stream of pure hatred. Those worried about the chilling effect of policing speech online might pause and consider the impact this relentless abuse has had on Sarkeesian’s freedom of expression.

The irony is that Twitter owes a great degree of its success to users like Sarkeesian, Guthrie and Reilly. Many of those who have been traditionally shut out of mainstream media — people of colour, women, LGBT people — have created vibrant social media communities like #BlackLivesMatter with huge followings, driving up traffic on sites like Twitter. (In the US, both black people and Latinos are more active on Twitter than whites.)

Yet Twitter continues to fail these avid users by not protecting them from racist, sexist and homophobic harassment, and by its abysmal lack of inclusion in its workforce. The two issues are related: If only a few people at the company understand what it feels like to be bombarded by insults and threats every time they share an opinion on Twitter, there is less urgency to solve the problem. And if Twitter doesn’t find solutions soon, it will lose these users altogether.

At the height of his Twitter use, Elliott would write as many as 300 tweets per day. Because of his bail conditions, he has been off the internet since 2012, but as of Friday’s verdict, his activity has resumed. After the trial ended, he spoke to reporters outside the courtroom. He told them that he stood by his actions towards Guthrie and Reilly and if given the chance to do it all over again, he says he wouldn’t behave any differently. And for now, at least, it appears he won’t have to.

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